Non-custodial sentencing

The presentchapter aims to examine the principal non-custodial measures available to Englishcourts, in the light of the Criminal Justice Act 2003.1 In brief, four methods ofdisposal are

CHAPTER 10

Non-custodial sentencing

In Chapter9the close connection between custodial and non-custodial sentencingwas often evident, particularly when discussing the custody threshold The presentchapter aims to examine the principal non-custodial measures available to Englishcourts, in the light of the Criminal Justice Act 2003.1 In brief, four methods ofdisposal are unchanged (absolute discharges, conditional discharges and bind-overs,compensation orders and fines), but the 2003 Act has replaced the diverse forms ofcommunity order with a single, generic community sentence It has also reshapeddeferment of sentence First, it is necessary to consider the route by which theEnglish system arrived at its present position

of available non-custodial sentences did little to deflect courts from their use ofcustodial sentences Changes in sentencing practice did take place, but these did notimpinge significantly on the use of custody

It was lack of progress in that direction, combined with concern among sentencersabout laxity in the enforcement of non-custodial sentences, that led to changes inthe 1991 Act The notion of ‘alternatives to custody’ had not been found convincing

or even comprehensible by many sentencers: there was, they would say, nothing

1 Non-custodial measures for young offenders are dealt with in ch 12 below.

2 For an analysis of policy changes, see Bottoms ( 1987 ); Bottoms, Rex and Robinson ( 2004 ).

293

equivalent to prison, and certainly nothing in the available options Major changes

of direction were proposed in the 1990 White Paper: restraint in the use of custodyfor non-serious offences, a toughening of community sentences, more rigorousenforcement of community measures, and greater use of financial penalties Perhapsthe most important change was the abandonment of the ‘alternatives to custody’rhetoric, and its replacement with the idea of punishment in the community:

The Government believes a new approach is needed if the use of custody is to bereduced Punishment in the community should be an effective way of dealing with manyoffenders, particularly those convicted of property crimes and less serious offences ofviolence, when financial penalties are insufficient The punishment should be in therestrictions on liberty and in the enforcement of the orders All community serviceorders place restrictions on an offender’s liberty, and so may probation orders when,for example, they require an offender to attend a day centre for a lengthy period.The discipline exerted by these orders on offenders may extend over many months.These orders intrude on normal freedom, and the court should be satisfied that this isjustified.3

Thus, responding to the views of sentencers, the then government announcedmore demanding, ‘tougher’ orders which restricted liberty, and a more regularsystem of enforcement The Criminal Justice Act 1991 therefore separated out sixsentences (i.e probation, community service, combination orders, curfew orders,attendance centres and supervision) and termed them ‘community sentences’ Aseventh community sentence, the drug treatment and testing order, was added by

s 61 of the Crime and Disorder Act 1998 These were reinforced by the drawing up

of National Standards, specifying the form that each community sentence shouldtake, the contents of the order, the enforcement of the order and so forth

Since the 1991 Act the proportionate use of community sentences has increasedsignificantly for both male and female offenders, but these increases have not beenaccompanied by reductions in the use of custody, which has also risen steeply.The consequence, as is evident from Table4in Chapter1, is that the communitysentences rose from 18 per cent in 1992 to 25 per cent in 2002 for adult men at thesame time as the proportionate use of custody rose from 18 per cent to 30 per centfor that age-group For adult women the rise in community sentences was from

22 per cent to 33 per cent at the same time as custody for this group increasedfrom 6 per cent to 17 per cent Overall, therefore, the displacement has been, notfrom custody to community sentences, but rather from suspended sentences andfines to community sentences and custody The aim of increasing courts’ use of fineshas not been realized, the abolition of the unit fine system by the Criminal JusticeAct 1993 amounting to an abandonment of that policy Thus, through their greaterdemands and tougher enforcement, community sentences have contributed to anincreasingly punitive sentencing system

3 Home Office ( 1990 ), para 4.3.

10.2 The absolute discharge 295

Brief mention should be made of the Criminal Justice and Court ServicesAct 2000, which (among other changes) altered the names of several major com-munity sentences Immediately following the consolidation of sentencing law bythe Powers of Criminal Courts (Sentencing) Act 2000, the government thought itdesirable to rebrand certain community sentences The probation order became thecommunity rehabilitation order; the community service order became the commu-nity punishment order; and the combination order became the community punish-ment and rehabilitation order Why this change was needed in 2000 remains difficult

to fathom, not least because the new names were abandoned in the Criminal JusticeAct 2003 in favour of a further set of names of (what are now) requirements formingpart of a community sentence This will be taken up again in part10.6below: itsrelevance here is to suggest that, at times, the development of community sentenceshas been more dogma than substance

The Criminal Justice Act 2003 makes major changes to non-custodial sentencing,but most of those changes concern community sentences The Halliday reportconcluded that discharges and fines are working well as part of the sentencingsystem, and proposed no significant changes.4 It is with those measures that thediscussion begins

10.2 The absolute discharge

This is the least severe order which a court can make on conviction It requiresnothing from the offender, and imposes no restrictions on future conduct Thestatutory provisions on discharges are consolidated in ss 12–15 of the Powers ofCriminal Courts (Sentencing) Act 2000 For many purposes an offence followed

by an absolute discharge does not count as a conviction (s 14 of the 2000 Act),but s 134 of the Sexual Offences Act 2003 provides that a conviction followed by adischarge does count for the purpose of requiring sex offender notification

Absolute discharges are relatively uncommon, being granted in around 1 per cent

of cases They are generally reserved for the most venial of offences, committed incircumstances of little moral blame We saw earlier that one criterion for cautioning

or discontinuing a case is that the court ‘would be likely to impose a purely nominalpenalty’.5If that test is conscientiously applied, most of the absolute discharge casesought not to be prosecuted, and one might regard those that do end in an absolutedischarge as ‘failures’ of the prosecution system In his study, however, MartinWasik argues that this might not always be so He discusses three main reasons forgranting an absolute discharge: where the offence is venial; where the offender hadlow culpability or high motivation, but the law does not provide a defence; andwhere the offender has suffered collateral losses or ‘indirect’ punishment as a result

of the offence Cases in the last category do not suggest any failure of prosecution

4 Halliday ( 2001 ), paras 6.15–6.19 5 Ch 1.4 above.

policy: whether they should result in mitigation of sentence has been discussedelsewhere.6

10.3 Conditional discharges and bind-overs

The conditional discharge has a similar legal framework to the absolute discharge.The condition which forms part of the discharge is that the offender should commit

no further offence during the specified period, which may be up to three years If

a further offence is committed during the specified period, the court may sentencethe offender not only for that offence but also for the original offence which gaverise to the conditional discharge The statutory provisions on discharges are con-solidated in ss 12–15 of the PCCS Act 2000 Section 134 of the Sexual OffencesAct 2003 provides that a conviction followed by a conditional discharge does countfor the purposes of sex offender notification and other orders under Part2of thatAct

The essence of the conditional discharge is therefore a threat or warning: thecourt is prepared to impose no sanction for the present offence, on conditionthat there is no reoffending within the specified period This is different from thesuspended sentence of imprisonment, which should only be imposed where thepresent offence is so serious as to justify custody, and under which the secondcourt has a qualified duty to activate the suspended sentence, whereas the secondcourt has a wide discretion on breach of a conditional discharge.7David Moxon’s

1988survey showed that in the Crown Court over half the conditional dischargeswere granted in theft cases, mostly involving little or no loss, often committed bypeople of fairly good character.8In their mid-1990s survey, Flood-Page and Mackiegive no details on discharges granted by the Crown Court, but they report that inthe magistrates’ courts conditional discharges were given to 11 per cent of men and

21 per cent of women Stress, mental health problems and being a first offenderwere associated with decisions to grant a conditional discharge, and their interviewswith magistrates revealed that it was often regarded as a difficult choice between afine (immediate bite, no lasting effect) and a conditional discharge (no immediatebite, but a ‘sword of Damocles’ for a year or more).9

The proportionate use of conditional discharges grew enormously in the 1980sbut has steadied in more recent years For males aged 21 or over, their use increasedfrom 7 per cent in 1978 to 10 per cent in 1988 to 17 per cent in 1992, fallingback to 14 per cent in 2002; for females aged 21 and over, the increase was from

19 per cent in 1978 to 27 per cent in 1988 and 36 per cent in 1992, falling back

6 Cf Wasik ( 1985 ), pp 229–33, with ch 5.5.6 above.

7 The suspended sentence was discussed in ch 9.4.2above; cf Watts (1984) 6 Cr App R (S) 61 for an

example of the Court of Appeal replacing a suspended sentence with a conditional discharge.

8 Moxon ( 1988 ), pp 47–8.

9 Flood-Page and Mackie ( 1998 ), pp 53–4; it should be pointed out that many fines have more than

an immediate bite, since many offenders pay by instalments over several months.

10.3 Conditional discharges and bind-overs 297

to 24 per cent by 2002.10 The increases were unexpected because the police andthe Crown Prosecution Service were receiving repeated guidance that it was not inthe public interest to bring a prosecution where a nominal penalty was likely toresult; if they had been predicting these cases accurately, one might have expectedthe discharge rate to decrease rather than increase Similarly, the introduction

of conditional cautions under the Criminal Justice Act 2003 might be expected

to take away from the courts some cases that might otherwise result in a charge,11 but the effect on court disposals remains to be seen Insofar as there

dis-is a policy on conditional ddis-ischarges, it seems to be confused The Halliday reportreferred favourably to conditional discharges, commenting that ‘the evidence showsthat they are an effective disposal, attracting better than predicted reconvictionrates’.12 However, in two types of case – conviction for breach of an anti-socialbehaviour order, and sentencing a juvenile within two years of receiving a finalwarning – Parliament has seen fit to prevent courts from imposing a conditionaldischarge.13

The power to ‘bind an offender over’ is a flexible creature of statute and commonlaw, which may be applied to offenders, witnesses and indeed anyone involved inproceedings.14Some courts make considerable use of the ‘bind-over’ as a sentence,whereas others do not In a survey for the Law Commission, almost three-quarters

of bind-overs were for purposes other than sentencing15– a finding which raisesimportant questions about the wide-ranging use of this power, especially where it

operates as a quid pro quo in return for the dropping of a prosecution As a sentence,

the bind-over may amount more or less to a suspended fine Under the Justices ofthe Peace Act 1361 an offender may be bound over in a certain sum to keep thepeace for a specified period, on which there appears to be no limit Breach leads toforfeiture of the sum At common law an offender may be bound over in a certainsum to come up for judgment, apparently subject to almost any condition – in

Williams (1982)16a condition of going to Jamaica and not returning for five yearswas not held unlawful The common law power to bind a person over to be of goodbehaviour has been held to be too uncertain to be compatible with Article 10(2)

of the Convention.17The Law Commission had warned of impending difficulties

in 1994 and recommended the abolition of all forms of bind-over However, manyjudges and magistrates continue to find the power ‘flexible’ and ‘useful’, and in2003

10 See Tables 4 and 5 in ch 1.3 above, and annual volumes of Criminal Statistics.

11 See ch 1.4 above for brief discussion of conditional cautions.

12 Halliday ( 2001 ), para 6.19, showing that the two-year reconviction rate was 2 per cent below expectation.

13 On ASBOs, Crime and Disorder Act 1998, s 1(11), provides that ‘it shall not be open to the court

by or before which he is convicted’ to impose a conditional discharge; s 66(4) of the same statute prevents courts from imposing a conditional discharge on a juvenile who has received a final warning in the preceding two years unless the court finds ‘exceptional circumstances’.

14 For review and reform proposals, see Law Commission ( 1994 ).

15 Law Commission ( 1994 ), para 4.3 16 (1982) 4 Cr App R (S) 239.

17 Hashman and Harrup v United Kingdom (2000) 30 EHRR 24.

the Home Office issued a consultation document that proposed retention of someforms of bind-over with enhanced procedural protections.18

10.4 Compensation orders

Although the idea of making offenders pay compensation to their victims has a longhistory,19it is only in the last thirty years that it has become a regular and significantelement in English sentencing The Criminal Justice Act of 1972 introduced thecompensation order for injury, loss or damage In the Powers of Criminal CourtsAct 1973 it took its place alongside other measures such as the confiscation orderfor property used in the commission of crime (s 43) and also the restitution order(s 28 of the Theft Act 1968) One of the objectives of the 1982 Criminal Justice Actwas to increase the use of compensation orders by courts, and among the changes itintroduced were the possibility of making a compensation order as the only order in

a case, and the principle that the compensation order should have priority over a finewhere an offender has limited means The strongest measure is that introduced by

s 104 of the Criminal Justice Act 1988, which requires a court to consider making

a compensation order in every case involving death, injury, loss or damage, andrequires the court to give reasons if it makes no compensation order in such acase The 1991 Act raised the maximum to £5,000 in magistrates’ courts, and allthe statutory powers and requirements are now consolidated in ss 130–134 of thePCCS Act 2000

Systems of criminal justice ought to be concerned to assist victims no less than todeal fairly with offenders Crime is no less ‘about’ victims than it is ‘about’ offend-ers Indeed, the explanatory memorandum of the Council of Europe’s Convention

on Compensation for the Victims of Violent Crimes includes the proposition thatstates have a duty to ensure that crime victims receive compensation, because thestate is responsible for maintaining law and order, and crimes result from a failure inthat duty.20There was, however, considerable reluctance to accept a state obligation

in this country, although it was among the first to have a state scheme for criminalinjuries compensation.21That has now developed into the Criminal Injuries Com-pensation Scheme, given a legislative framework by the Criminal Injuries Compen-sation Act 1995 The details of the scheme raise a number of important issues whichcannot be pursued here,22but it is relevant to note that the minimum claim whichthe Criminal Injuries Compensation Authority will entertain is £1,000, and that thescheme is confined to crimes of ‘violence’ This means that the victims of minor vio-lence and the victims of all other forms of crime have to resort to civil proceedings

or to hope for a compensation order in their favour from a criminal court

18 Home Office ( 2003 ).

19 For debates in the nineteenth and early twentieth century, see Radzinowicz and Hood ( 1986 ),

pp 654–5.

20 Council of Europe ( 1984 ), Preamble 21 Rock ( 1990 ), p 273.

22 For full analysis see Miers ( 1997 ).

10.4 Compensation orders 299

At a more pragmatic level, criminal justice systems rely heavily on victims forinformation about crimes and about offenders, and for evidence in court It is onlyfair that, in return, the system should ensure that they receive the proper help andsupport Apart from the Criminal Injuries Compensation Scheme, recognition ofthis is evident in government assistance for the spread of victim support schemes,

to bring help, support and advice to the victims of burglary, rape and other crimes.Beyond that, there have been two Victim’s Charters (in 1990 and 1996) settingout the services and information which victims can expect to receive, but thesewere unenforceable.23Now the Domestic Violence, Crime and Victims Act 2004provides for the issue of a Code of Practice for Victims (s 32), provides for victims

to be informed of the impending release of ‘their’ offender and for them to makerepresentations on the matter (ss 35–44), creates the office of Commissioner forVictims and Witnesses (ss 48–51) and provides for the appointment of a Victims’Advisory Panel (s 55) These amount to the most visible attempt to recognizevictims’ rights in statutory form Whether they will improve the lot of victimsremains to be seen: they have little bearing on the question of compensation

Returning to the compensation order made by a criminal court, this sits ratheruncomfortably with other forms of sentence and order It has a dual function: inmany cases it operates simply as an ancillary order, to ensure some compensation tothe victim in addition to the state punishment contained in the principal sentence;

in other cases it becomes a central feature, as where it takes priority over a fine oraccompanies a conditional discharge, and particularly where it is the sole order inthe case In the ‘ancillary’ cases it can be justified as a reparative element whichaccompanies the proportionate sentence But some have found the task of justifica-tion harder when the compensation order is the principal or sole order in the case.How can this be regarded as sentencing when, in effect, the court is merely making

a relatively ‘rough and ready’ award of damages to the victim? The offender wouldhave been civilly liable to the victim in almost all cases and therefore, the argumentgoes, the court’s order amounts to nothing in sentencing terms – no punishment,but rather a kind of civil award made by a criminal court.24One counter-argument

to this is that, in practice, very few victims sue their offenders; therefore, in tice, the compensation order does transfer from the offender to the victim moneywhich the offender would not otherwise have been made to pay It may therefore berealistic to regard the compensation order as punitive in its effect on the offender,

prac-as well prac-as reparative in relation to the victim Another counter-argument would bethat orders do not have to be punitive anyway: the compensation order should beapplauded as a form of reparative justice, or at least as recognition that our systemought to be multi-functional rather than limited to punitive responses

How ought compensation orders to be used by the courts? Section 130 of thePCCS Act 2000 requires a court to consider an order in every case involving death

or injury, damage or loss It is well established that an order can be made in a case

23 Fenwick ( 1997 ). 24 See Barney (1989) 11 Cr App R (S) 448.

where the offence causes distress and anxiety.25Courts are empowered to make

a compensation order for ‘such amount as the court considers appropriate’, butappellate courts remain reluctant to uphold orders unless the amount of the loss isagreed or proved,26and unless the grounds for liability are clear and not complex.27

It is the prosecution’s duty to ensure that such evidence is available in court, and

if there is no up-to-date evidence it would be wrong for the court to calculate thecompensation on the basis of long-term effects which have not been proved.28Thecourt should be satisfied that the offender caused the harm for which compensation

is ordered,29although in public order cases where several offenders are convictedcourts have not required proof that the particular offender actually inflicted theharm.30

Section 130 requires the court to have regard to the means of the offender whendeciding whether to make a compensation order and when deciding on its amount

It will be apparent that the characterization of compensation orders as essentiallycivil measures breaks down at this point, because awards of damages are not reduced

to take account of the means of defendants The law on compensation orders is thesame as applies to fines, and the justification for this must be that compensationorders which were too high to be paid would be prison sentences in disguise.31

Compensation orders are enforced as if they were fines, and imprisonment is theultimate sanction for non-payment This blurring of the civil and the criminalcontinues when we consider what assets of a defendant may be used to pay acompensation order: a court may be justified in ordering the sale of a moveableasset such as a car to pay compensation, so long as it has reliable evidence of thecar’s value,32but it is usually regarded as wrong to order the sale of a family home

in order to compensate the victim, unless the home was purchased substantiallyout of the proceeds of the offence.33No such indulgence would be granted by thecivil courts, but the criminal courts prefer the interests of the offender’s family overthose of the victim, presumably on the grounds that to impose too severe a burdenmight encourage further crime or might lead to the offender being imprisoned fordefault The payment of a compensation order out of income may be stretched overtwo or even three years, if the court thinks this appropriate.34Such long orders mayfail to ensure that the victim receives compensation when needed, may prolong thememory of the offence, and may end in default It is regrettable that governmentshave not acted on the proposal that the court should pay the full amount of the

25 Bond v Chief Constable of Kent (1982) 4 Cr App R (S) 314, Godfrey (1994) 15 Cr App R (S) 536.

26 Vivian (1978) 68 Cr App R 53; however, if a certain minimum loss is beyond dispute and a greater

loss is contested and difficult to assess, the court should make the compensation order for the

minimum loss: James [2003] 2 Cr App R (S) 574.

27 Horsham Justices, ex p Richards (1985) 7 Cr App R (S) 158; White [1996] 2 Cr App R (S) 58.

28 Smith [1998] 2 Cr App R (S) 400 29 Graves (1993) 14 Cr App R (S) 790.

30 Taylor (1993 ) 14 Cr App R (S) 276. 31 Panayioutou (1989) 11 Cr App R (S) 535.

32 See e.g Martin (1989) 11 Cr App R (S) 424, a case where the offender was also sentenced to custody.

33 Cf Holah (1989) 11 Cr App R (S) 282, also a case where the offender was imprisoned, with McGuire

(1992) 13 Cr App R (S) 332.

34 Olliver and Olliver (1989) 11 Cr App R (S) 10, discussed below, part10.5.6

10.4 Compensation orders 301

compensation order to the victim immediately out of court funds, and should thenrecover it from the offender in the ordinary way.35

Soon after the introduction of compensation orders, the question of their relation

to other sentences was raised The words of Scarman LJ in Inwood (1974)36remainapposite:

Compensation orders were not introduced into our law to enable the convicted to buythemselves out of the penalties for crime Compensation orders were introduced intoour law as a convenient and rapid means of avoiding the expense of resort to civillitigation when the criminal clearly has means which would enable the compensation

to be paid

It therefore follows that an offender’s ability to pay compensation should not beallowed to deflect the court from imposing a custodial sentence or a communitysentence, if that is what the offence justifies.37If this were not so, the law wouldpermit wealthy offenders to receive reduced sentences, which would infringe theprinciple of equality before the law (see Chapter7.1) It may be said that for lessserious offences the law accords precedence to reparative over punitive elements,

in that a compensation order has priority over a fine But the priority is reversed

for serious offences: thus, in Jorge (1999)38 the Court of Appeal, reviewing theauthorities, confirmed that it is generally wrong to impose a compensation orderwith a custodial sentence unless ‘either the defendant has assets from which to pay

it, especially no doubt the proceeds of his crime, or he is reasonably assured ofincome when he comes out from which it is reasonable to expect him to pay’

How frequently do courts make compensation orders? The trend is for them

to award compensation less and less frequently Thus in the Crown Court some

21 per cent of offenders in 1989 and 1990 were ordered to pay compensation, butthis had fallen to 7 per cent by 2002 One possible reason for this is that the rise inthe use of custody has precluded the making of a compensation order in some cases.Thus, for example, in 2002 the Crown Court only made a compensation order in

17 per cent of cases of violence and 3 per cent of burglary cases.39There has also been

a decline in the use of compensation orders by magistrates’ courts for indictableoffences, from 29 per cent in 1990 to 15 per cent in 2002 An order was made insome 33 per cent of cases of violence and 52 per cent of criminal damage cases

in 2002, but that was for indictable offences, and since common assault and mostoffences of criminal damage are summary only, it is worth noting that the number

of compensation orders made in non-motoring summary cases increased fromsome 35,000 to 59,000 between 1992 and 2002 If one adds indictable and summaryoffences, the use of compensation orders by magistrates’ courts remained stablebetween 1992 and 2002 However, the study by Flood-Page and Mackie showed

35 See the prevarication in Home Office ( 1990 ), para 4.25 36 (1974) 60 Cr App R 70, at p 73.

37 E.g Copley (1979) 1 Cr App R (S) 55. 38 [1999] 2 Cr App R (S) 1.

39 Criminal Statistics 2002, Table 4.21.

that legal procedures were not being carried out in some cases: a magistrates’ court

is required to give reasons if it does not make a compensation order, but in over

70 per cent of cases this was not done; in some cases magistrates said that they didnot award compensation because the victim did not request it, a clear breach ofthe statutory requirement to consider it in every case of harm.40However, the mostcommon reason for not making a compensation order was that stolen goods wererecovered, and in some cases the offender’s income was thought too low to make anorder Some courts regarded it as pointless or counter-productive to make an orderagainst an offender in the same household as the victim

Although the theory behind compensation orders is right, there are two icant practical drawbacks from the victim’s point of view First, an order can only

signif-be made if the offender is detected, prosecuted, convicted and not penniless Sincefewer than one-quarter of all reported offences are ‘cleared up’, and since aroundtwo-thirds of defendants are unemployed, a victim’s prospects of receiving com-pensation from this source are hardly bright Second, the increased use of policecautioning has led to fewer cases being brought to court over the last twenty years.There are good reasons in favour of diversion, as we saw in Chapter1.4, but the result

of diversion was often to leave the victim without compensation These two reasons,and the great increase in the use of custody, mean that fewer victims now receivecompensation from their offenders than twenty years ago: in 1983 some 128,000offenders were ordered to pay compensation to their victims, whereas in 1993 thefigure was only 97,000, and in 2002 it stood at 103,000 The advent of the condi-tional caution may change this, since one of the conditions that may be imposed oncautioned offenders is that they pay specified compensation to the victim.41Sur-veys of victims have shown that they set particular store by receiving some money,even if not full compensation, from the offender rather than from any other source.4210.5 Fines

26 per cent by 2002, and to 20 per cent for adult women Fines are the normalresponse to offences committed by companies, and the attendant difficulties arediscussed in part10.5.6below

40 Flood-Page and Mackie ( 1998 ), pp 60–4 41 See ch 1.4 above.

42 Shapland, Willmore and Duff ( 1985 ).

10.5 Fines 303

The fine is often presented as the ideal penal measure It is easily calibrated,

so that courts can reflect differing degrees of gravity and culpability It is intrusive, since it does not involve supervision or the loss of one’s time Indeed, it isstraightforwardly punitive, ‘uncontaminated by other values’.43It also seems to berelatively effective, since surveys show that it tends to be followed by fewer recon-victions than other sentences The assertion of superior efficacy has been doubted,since Tony Bottoms rightly pointed out that courts tend to select for fines offenderswith a certain stability in their lives (job, family) which would in any case indicate

non-a lower risk of reoffending.44Justifiable as this is as a criticism of most studies ofcomparative effectiveness, it remains true that fines have emerged well from almost

all of them This is no reason to claim superior efficacy, but neither does it suggest

that the decline in fining should be applauded As a recent Home Office surveyputs it, ‘reconviction rates for fines compare favourably with community penal-ties There is thus no evidence that the switch from fines to community penaltiesthat has occurred over the last twenty years has achieved anything by way of crimereduction.’45

The 1990 White Paper promoted the twin aims of greater use of fines and greaterjustice in fining: ‘Setting fairer fine levels should lead to the greater use of finesand less difficulty in enforcing them.’46However, as will be explained in part10.5.3below, the provisions of the Criminal Justice Act 1991 on unit fines were abandonedwithin a few months of their introduction, and the overall use of fines has continued

to decline In recent years there has been a revival of government interest in fines.The Courts Act 2003 makes provision for the Court Service to focus on the enforce-ment of fines, but the Criminal Justice Act 2003 does little to advance the Hallidayreport’s support for the fine Halliday argued that fines should be used ‘at all levels

of seriousness, both in isolation and in combination with [other] non-custodialpenalties’.47He was aware that adding a financial penalty to a community sentenceshould not be allowed to take the ‘punitive weight’ of the sentence above the levelproportionate to the seriousness of the crime, and he also argued that ‘substantialfines in quite serious cases might be enough to meet the needs of punishment’.48

However, little of this found its way into the White Paper of 2002 Instead it wasRod Morgan, then Chief Inspector of Probation, who demonstrated that low-riskoffenders were increasingly being given community sentences instead of fines, tak-ing those offenders more quickly up-tariff and also ‘silting up’ the probation servicewith offenders who did not really need their intervention.49The Carter Review tookthis argument forward and returned fines to the main agenda of sentencing reform.Carter argued that

43 Young ( 1989 ) 44 Bottoms ( 1973 ).

45 Moxon ( 1998 ), p 98 46 Home Office ( 1990 ), para 5.2.

47 Halliday ( 2001 ), para 6.15 Earlier (para 6.5), he stated that ‘the “serious enough” threshold [for imposing a community sentence] may have unintentionally created an impression that fines should be reserved for the least serious cases, which is not the case’.

48 Halliday ( 2001 ), para 6.16 49 Morgan ( 2003 ).

Fines should replace community sentences for low risk offenders 30 per cent of munity sentences are given to offenders at low risk of reoffending.50

com-Carter then went on to recommend the introduction of a day fine system – alongsimilar lines to the system abandoned in 1993 In its reply, the government cited thefall in the use of fines as a principal reason for the ‘increased severity in sentencing’and rising use of prison.51It accepted the recommendation that ‘revitalized finesshould replace a very substantial number of the community sentences that arecurrently given to low risk offenders’, and promised to explore the feasibility oflegislation to introduce day fines.52These are significant steps, but there remainsthe practical question of how to turn courts back towards fining and away fromtheir reliance on community sentences and custody

10.5.2 Fines and fairness

As we saw in Chapter7.5, the fine may raise questions related to the principle ofequality before the law and the principle of equal impact Equality before the law

is relevant in two ways One is that courts should not fine a wealthy offender whenthe offence justifies a more severe measure which they would have imposed on a

less wealthy offender The striking decision in Markwick53was cited in support Theother aspect is that courts should not impose a more severe penalty on an offenderwho lacks the means to pay what is regarded as an adequate fine In the past, theCourt of Appeal struck down several suspended sentences on this ground:54 theproper course, if a court declines to impose a fine, is to move down to a conditionaldischarge and not up to a more severe measure There is no ready way of assessinghow faithfully the principle of equality before the law is followed in practice.The principle of equal impact points to another aspect of social justice in relation

to fines It has long been established that a court should have regard to the means

of the offender when calculating the amount of a fine, but this principle had beensomewhat blunted in practice in three ways – the old rule that fines should not beincreased for the rich, the difficulties in obtaining accurate information about anoffender’s financial situation, and courts’ reluctance to impose fines that appearderisory to them and to newspaper readers The 1991 Act attempted to tackle theseproblems

10.5.3 The rise and fall of unit fines

In an endeavour to achieve more and fairer fining, the 1991 Act introduced the unitfine Day-fine systems operate in other European countries, such as Germany andSweden, and it was decided to adapt them for use here An experiment in the late1980s showed that, after initial scepticism among local magistrates, the courts had

50 Carter ( 2003 ), p 27 51 Home Office ( 2004 ), para 19.

52 Home Office ( 2004 ), paras 34–35 See also Coulsfield ( 2004 ) for a similar proposal.

53 (1953) 37 Cr App R 125.

54 E.g McGowan [1975] Crim LR 111; Ball (1981) 3 Cr App R (S) 283.

10.5 Fines 305

quickly become accustomed to calculating fines in units; that fine levels were morerealistic; and that fine enforcement was improved, with less resort to the sanction

of imprisonment for non-payment.55

The success of these schemes not only persuaded the then government to providefor their introduction into all magistrates’ courts under the 1991 Act, but also ledseveral benches to introduce them of their own accord, in advance of the legislation

In outline, the scheme introduced by the 1991 Act was that magistrates’ courts, whendealing with an individual (not a company), should calculate the fine by decidinghow many units, on a scale from 1 to 50, represented the relative seriousness ofthe offence This would be the judicial or judgmental part of the decision Thenthe court would turn to the more administrative task of deciding how much theoffender could afford to pay The Act, combined with rules made by the Lord Chan-cellor’s Department, instructed courts to calculate each offender’s weekly disposableincome, to make some standard deductions to reflect ordinary living expenses, andthen to move towards the decision of how much the offender should pay per unit.The minimum was set at £4 per unit, which was regarded as possible for an offenderwhose only income came from state benefits, and the maximum was £100 per unit.The statutory unit fine system came into force on 1 October 1992, and wasabolished in the summer of 1993 by the Criminal Justice Act 1993 What werethe problems? First, the amount of unit fines under the statutory scheme was farhigher than in the experimental schemes It is said that this was at the insistence ofthe Treasury, but it resulted in a scheme with a quite different flavour: few of theexperimental courts went above £25 per unit, whereas the statutory scheme went up

to £100 per unit Second, the scheme emphasized income to the exclusion of capitaland other indicia of wealth – an approach aimed at simplicity, but productive ofsome injustice Third, the statutory scheme became extremely complex, particularly

in the regulations for calculating weekly disposable income Since the scheme wasnever intended to be precise, but merely to mark a significant step towards equality

of impact, it was unfortunate that it became so complex Fourth, a vocal group

of magistrates, particularly some stipendiary magistrates, felt that the scheme wasmisconceived because it was too rigid and overlooked the problems of determiningthe income of certain types of offender, such as prostitutes and foreign tourists

However, it was a fifth difficulty that was probably the major factor in the decision

to abolish unit fines The system resulted in particularly high fines for offenderswho might previously have received relatively low fines, particularly middle-classmotoring offenders with moderately or well-paid jobs This, of course, was one

of its aims: the 1990 White Paper referred to the need to impose substantial fines

on ‘an increasing minority of offenders with greater resources’.56 If courts hadroutinely announced fines in terms of the number of units imposed, rather thanthe total payment, this element in the new scheme might have been less open to

55 See Gibson ( 1990 ), and Moxon, Sutton and Hedderman ( 1990 ).

56 Home Office ( 1990 ), para 5.5.

misinterpretation As it was, the press, and particularly one newspaper group, beganassiduously to collect examples of different levels of fines being imposed on peoplewho had committed similar offences One newspaper headline ran: ‘Two cases,minutes apart, but with very different penalties For a Mr Rothschild, a £2,000 fine;for a man named Bell, an £84 fine.’57 No mention was made of the principle ofequal impact that lay behind the new scheme The journalists almost seemed to

be assuming that the two men should have received the same fine, despite the vastdifference in their incomes The widely publicized case of a man who was fined

£1,200 for dropping an empty crisp packet in the street increased the pressure onthe government to ‘do something about’ the new scheme, even though it quicklybecame evident that the reason why the magistrates had fined this offender at £100per unit was that he failed to disclose his income to the court

In May 1993, at a time when the Magistrates’ Association had put togethersome proposals for alterations to the scheme, the then Home Secretary, KennethClarke, made the politically extravagant gesture of announcing the abolition ofunit fines entirely That decision was founded on two manifest confusions Oneconfusion was that between the principle of equal impact and the details of theactual scheme adopted Politicians and the media would speak and write as if alloffenders should receive similar fines, irrespective of differences in wealth Theprinciple ‘that different financial penalties can provide the same punishment foroffenders of different means’58seems to have been lost among the complaints aboutthe practical details of the legislative scheme adopted That was not the scheme thathad been so successful in the experiments The other confusion was that betweenthe right amount of structure and the right amount of discretion The unit finesystem attempted to formalize and to structure the reasoning of magistrates whencalculating fines It probably formalized it to too great an extent But if the balancebetween structure and discretion was wrong, it does not follow that the wholesystem should be abolished

Whether the Carter review’s proposals will provoke further legislation on dayfines or will disappear discreetly from view is difficult to predict There is relativelylittle in the Carter review on day fines:59not only is there no attempt to confront(even to mention) the controversial aspects of the 1991 unit fine system, but alsothere is a suggestion that the maximum weekly deduction from benefit should beincreased from £2.70 It will take more than this to achieve Carter’s avowed aim,

‘fines rebuilt as a credible punishment’

10.5.4 Fines in magistrates’ courts: business as usual?

The legislation on fines as sentences has now been substantially re-enacted in theCriminal Justice Act 2003 Section 164(2) provides that the amount of the fineshould reflect the seriousness of the offence Section 164(3) provides that in fixing

57 Daily Mail, 28 Oct 1992, p 5. 58 Home Office ( 1990 ), para 5.2.

59 Less than a page is devoted to the whole subject: Carter ( 2003 ), p 27.

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the amount of the fine a court should take account of the offender’s financialcircumstances Section 164(4) adds that this applies whether it has the effect ofincreasing or reducing the amount of the fine These provisions ought to be appliedstep-wise: first, the court should determine the level of fine that represents theseriousness of the offence; second it should make the appropriate adjustment toreflect the offender’s means Section 164(1) requires a court to inquire into theoffender’s financial circumstances before fixing the amount of a fine Section 162empowers a court to make a financial circumstances order, requiring the relevantperson to provide the court with such financial details as it requests

This legislative framework was first introduced in 1993 to replace unit fines.What were its effects? Figures from the Home Office data collection exercise showthat the proportionate use of fines for indictable offences at magistrates’ courts rose

to 42 per cent in the final quarter of 1992, and then fell back to 35 per cent in thefinal quarter of 1993, following the abolition of unit fines The decline in finingwas most marked amongst those who were unemployed at the time of sentence(from 43 per cent down to 32 per cent), and by the end of 1993 average fines forthe unemployed had risen from £66 to £78 Average fines for the employed, onthe other hand, had declined from £233 to £158.60No such detailed figures havebeen produced since then, but they suggest the re-emergence of the very unfairnessproblems that had led to the introduction of unit fines

Research by Charman, Gibson, Honess and Morgan (1996) found that in 1995some 55 per cent of magistrates’ courts substantially adopted the Magistrates’ Asso-ciation guidelines on calculating fines, a further 28 per cent had devised a significantmodification of those guidelines for local use, and that 17 per cent were operating

a unit fine approach, using the logic of the scheme to assist magistrates to calculatefines within the new legislative framework Sentencing exercises carried out by mag-istrates from various courts showed that those from courts using unit fines reachedthe most concordant decisions, and ‘graduated fines more radically in accordancewith defendants’ incomes’ compared with other courts Those other courts hadsome divergent approaches:

For example, an unemployed defendant in receipt of income support was fined a total

of £250 plus £20 costs for three offences of using a car with a defective tyre, handbrakeand headlamp by one panel For the same offences, two other panels from thesame [court] fined two employed defendants – one with a medium and the other with

a high net disposable income – totals of £80 plus £20 costs and £160 plus £20 costsrespectively.61

These were ‘only’ sentencing exercises, one might say, but they do little to allayfears that disparities in fining occur to a considerable degree Research by Robin

60 Home Office ( 1994 ).

61 Charman et al ( 1996 ), p 4; one problem with fining for some motoring offences, such as driving without insurance or without road tax, is that low fines make it profitable for those on low incomes not to pay car insurance or road tax But that consideration does not apply to this example.

Moore at the turn of the century also reveals a failure of many benches to graspthe financial circumstances of some offenders.62 There appear to be two majorbarriers to fairer fining – a reluctance to fine unemployed people amounts whichlook small through middle-class eyes, and a reluctance to impose on offenders withsubstantial incomes fines which look high in relation to the offence As to the firstbarrier, Staughton LJ lamented:

What troubles me about these cases is not the remedies which the magistrates had tochoose from as means of enforcement, but the size of the fines which people on incomesupport were expected to pay out of resources which are said to be only sufficient forthe necessities of life.63

As to the second barrier, Flood-Page and Mackie concluded from their research,

in which they questioned magistrates about their willingness to increase fines forthe wealthy, that ‘these contrasting opinions meant that wealthy offenders couldreceive very different fines at different courts as the size of the fine imposed dependslargely on the views of the magistrates at that court’.64Translating the principle ofequality of impact into practice seems difficult to achieve

The 2004 version of the Magistrates’ Court Sentencing Guidelines embodies a

practical attempt to grapple with this difficult problem For each offence for which

a fine is the guideline sentence, the guidelines indicate fine A, B or C as the startingpoint The commentary then urges the court to use its powers to obtain financialinformation, including not only income but also savings, disposable assets, level ofoutgoings and any unpaid fines It then advises magistrates as follows:

The suggested fines in these Guidelines are given as either A, B or C These sent 50 per cent, 100 per cent and 150 per cent of the defendant’s weekly take homepay/benefit (Weekly take home pay or benefit means weekly income after all deduc-tions made by an employer (take home pay) or the amount of weekly benefit.) Theselevels take into account ordinary living expenses This guidance should not be used as

repre-a trepre-ariff repre-and every offender’s merepre-ans must be individurepre-ally considered.65

This is an attempt to combine structure with flexibility Supporters of unit fineswill still find it too woolly,66whereas it will be welcomed by those who think thatcourts should be left with maximum discretion The problem with the latter group

is that their approach is capable of leading to unfair fines because of their failure torecognize the two barriers outlined above

10.5.5 Fines in the Crown Court

The unit fine scheme was confined to magistrates’ courts, and the Crown Courtcontinued with only one significant change – a statutory principle that fines should

62 Moore ( 2003 ). 63 Stockport Justices, ex p Conlon [1997] 2 All ER 204 at p 214.

64 Flood-Page and Mackie ( 1998 ), p 53 65 Magistrates’ Association ( 2004 ), p 85.

66 Cf Moore ( 2003 ), who argues for a different structure based on payments for a set number of weeks.

10.5 Fines 309

be increased for the rich as well as reduced for the poor, now found in s 164(4).67

Section 163 empowers the Crown Court to impose a fine (not subject to any limit,other than the offender’s means) ‘instead of or in addition to’ any other way ofdealing with the offender Questions remain about the extent to which the CrownCourt adjusts fines according to the income of offenders, particularly poor offenders.Thus, Flood-Page and Mackie found that the average fine for an unemployed manwas £340 (which would take 16 months to pay at £5 per week, then thought to be themaximum for those on state benefits), and that just under one-fifth of unemployedmen who were fined had to pay over £500.68Section 152(2) of the 2003 Act requirescourts to impose custody only where it is satisfied that ‘neither a fine alone nor

a community sentence can be justified for the offence’, and that indicates a needfor courts to consider imposing a substantial fine in cases approaching the custodythreshold The ensuing difficulty is that courts may fine those who can afford topay large amounts and imprison those of lesser means

A number of related issues of principle were raised in Olliver and Olliver (1989).69

Two brothers were convicted of wounding and of assault occasioning actual bodilyharm to a police officer Such offences would often result in immediate custodialsentences, but the court imposed suspended sentences of two years and 18 months,combined with fines and compensation orders totalling over £5,000 for one ofthe brothers, and somewhat less for the other The reason for taking this coursewas that the brothers ran a carpentry business on which the jobs of 23 othersdepended, and to imprison them would put the business and the jobs in jeopardy.The Court of Appeal dismissed an appeal against the fines, Lord Lane remarkingthat it is ‘desirable if possible to keep people out of prison’ and that ‘if people can

be dealt with properly by means of non-custodial sentences, and fines are possiblythe best of all the non-custodial sentences, then that should be done’ This case wassupremely difficult, involving as it did a conflict between the principle of equalitybefore the law, the principle of restraint in the use of custody, and the avoidance

of harmful consequences to innocent third parties However, it is important thatthe last-mentioned point be emphasized Surely it was the consequences to the

23 employees which turned the case:70restraint in the use of custody should not

so easily outweigh the principle of equality before the law in general Crown Courtsentencing

10.5.6 Repayment periods

Courts should always be prepared to allow time to pay Some offenders will beexpected to pay the whole sum at once Others may be allowed time to pay over alonger period, although subsequent adjustments are often regarded as an adminis-trative decision and practices differ from court to court.71The normal maximum

67 In these cases there must still be some element of proportionality to the seriousness of the offence:

Jerome [2001] 1 Cr App R (S) 316.

68 Flood-Page and Mackie ( 1998 ), p 106 69 (1989) 11 Cr App R (S) 10.

70 See the discussion in ch 5.4.5 above 71 Moore ( 2003 ).

repayment period was set at one year by judicial decisions in the 1980s,72but some

commentators have assumed that the effect of Olliver and Olliver (1989)73 is tooverturn this What the Lord Chief Justice said in that case was that there is nothingwrong in principle in the payment period being longer than one year, provided that

it was not an undue burden or too severe a punishment Two years would seldom

be too long, and three years might be acceptable in an appropriate case Care mustsurely be taken in ensuring that these longer periods are not used too readily, par-ticularly since they apply to compensation orders as much as to fines If the burdensare too great, the orders may be prison sentences in disguise.74

10.5.7 Fining companies

A company which is convicted of, or pleads guilty to, an offence may be sentenced

in one of a number of ways – a compensation order, or an absolute or conditionaldischarge, would be possible But fines are the most frequent penalty, and thisimmediately raises the issue of how such fines should be calculated Magistrates’courts are subject to a maximum fine of £20,000 in most such cases, so many

of the serious cases are committed to the Crown Court In the leading cases onenvironmental offences, the Court of Appeal rightly emphasizes the importance ofassessing the degree of the company’s culpability, especially where the offence is

one of strict liability But, when summarizing the issues in Anglian Water Services

Ltd (2004),75nothing was said about the relevance of the economic standing of thecompany to the size of the fine This issue was discussed in the leading decision on

fines for breaches of the health and safety legislation, F Howe & Son (Engineers)

Ltd (1999),76where the Court of Appeal took account of the fact that this was asmall company with limited financial resources The judgment sets out the mainfactors relevant in assessing culpability for health and safety breaches, and then addsthat the state of the company’s finances is a relevant factor For larger companies,however, it seems that their financial standing is rarely discussed and the size of thefine is calculated by reference to fine levels in similar cases.77

In principle, the approach to fining companies should be the same as for viduals: s 164(2) states that the fine should reflect the seriousness of the offence, s.164(3) states that the court should take account of the financial circumstances ofthe offender (‘whether an individual or other person’), and s 164(4) states that thismay have the effect of increasing or reducing the amount of the fine Adjusting fines

indi-to the means of individuals is difficult enough: how can courts adjust fines indi-to theability of companies to pay? This question was broached by the Sentencing Advi-sory Panel in its first advice to the Court of Appeal, but it found the choice between

72 Knight (1980) 2 Cr App R (S) 82, Nunn (1983) 5 Cr App R (S) 203.

73 Above, n 69 and accompanying text.

74 As recognized by Staughton LJ in the quotation above, text at n 63

75 [2004] 1 Cr App R (S) 374, summarizing the effect of Milford Haven Port Authority [2000] 2 Cr App R (S) 423 and Yorkshire Water Services Ltd [2002] 2 Cr App R (S) 37.

76 [1999] 2 Cr App R (S) 37.

77 E.g Avon Lippiatt Hobbs (Contractors) Ltd [2003] 2 Cr App R (S) 427, reviewing the size of fines

in earlier cases.

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turnover, profitability and liquidity as measures of company wealth to be difficult

to resolve.78Nonetheless, it remains important for the courts to take account ofthe means of companies, particularly when imposing a fine on a relatively smallbusiness There is also the possibility of giving the company time to pay the fine.79

10.5.8 The enforcement of fines80

Practices differ considerably from one magistrates’ court to another There arevarious ways in which the rate of payment can be adjusted, sometimes by agreementwith the court staff who deal with fine enforcement, sometimes as a result of a courtappearance.81The speed at which offenders are brought back to court for defaultproceedings varies considerably, and the attitude of the courts at those proceedingsvaries also.82 There has long been a range of enforcement measures, includingreminder letters, money payment supervision orders, attachment of earnings orders,distress warrants, overnight detention in a police station and suspended committal

to prison The ultimate sanction is imprisonment for default, the maximum periodsbeing regulated by statute

In recent years there has been a concerted and successful effort to reduce thenumber of fine defaulters sent to prison Over 22,000 fine defaulters were receivedinto prison in 1993 and in 1994 More than three-quarters of these were unem-ployed, and were on state benefits, some two-thirds had been in prison before, and

80 per cent had more than one set of fines outstanding The most frequent reason fordefault given by those interviewed in a small survey was that they could not afford

to pay the fines; clearly it is important to distinguish between those who cannotpay and those who can but will not.83Another survey found that some magistrateswere reluctant to consider some alternative enforcement measures, such as moneypayment supervision orders.84In the late 1990s courts were urged to make muchgreater use of alternative means of enforcement, both by guidance from the Lord

Chancellor’s Department and by the landmark decision in Oldham JJ, ex p

Caw-ley,85which requires courts to give active consideration to all alternatives beforecommitting a young fine defaulter to prison and to state those reasons in opencourt The provisions relating to the committal of adult fine defaulters to prison

are less exacting, as the Divisional Court pointed out in Stockport JJ, ex p Conlon,86

but the court in that case none the less scrutinized the reasoning of the magistratesand remitted one case for reconsideration

As a consequence of these developments, and a ‘best practice’ guide issued by theLord Chancellor’s Department, the number of fine defaulters received into prisondropped sharply – from its peak of 22,000 in 1994 to around 6,000 in 1997 and to

78 SAP, Environmental Offences (2000), paras 22–25 This is the only advice from the SAP that has

never been acted upon; on this particular issue, however, it invited the Home Secretary to give further examination to the problems.

79 Rollco Screw and Rivet Co Ltd [1999] 2 Cr App R (S) 436.

80 For thorough recent reviews see Moore ( 2003 ), ( 2004 ), and Raine, Dunstan and Mackie ( 2004 ).

81 Charman et al ( 1996 ), p 3; Raine et al ( 2004 ).

82 See Moore ( 2004 ) 83 Moxon and Whittaker ( 1996 ); Moore ( 2004 ).

84 Whittaker and Mackie ( 1997 ) 85 [1996] 1 All ER 464 86 [1997] 2 All ER 204.